SAROJ KUMAR BOSE Vs. KANAILAL MONDAL

JUDGEMENT

(1.) The present two consolidated appeals by certificate are directed against the judgment of the High Court of Calcutta dated 11th April, 1963.

(2.) The dispute between the parties centres round a Jalkar fishery right in a tank known as Teremara Jalkar situate in village Chandiguri in the district of 24-Parganas. Hari Charan Mondai, predecessor in interest of the respondents took a permanent lease of the said fishery without the sub-soil from different sets of proprietors by virtue of registered kabuliyats dated 4th November, 1914 on certain rent and came in possession thereof. Thereafter on 14th June 1952 they in their turn granted a registered lease of the said fishery right to the appellant for a term of 11 years up to and including the Bengali year 1369 at an annual rent of Rs. 650/-.

(3.) Under the West Bengal Estates Acquisition Act, 1953, hereinafter referred to as 'the Act', the interest of the intermediaries vested in the State of West Bengal with effect froth 15th April, 1955. The respondents filed a suit for the recovery of Rs. 1440/- as rent for the years 1361 and 1362 B.S. together with interest. The claim was resisted by the appellant and his defence in the main was that the interest in the fishery had vested in the State from 1362 B.S. under the said Act and so the contract created by the lease had been frustrated and he is not liable to pay rent for 1362 B.S., that the last year's rent deposited in advance was to be credited towards rent for 1361 B.S. and as such no rent was due from him. The learned Munsif decreed the suit in part with interest at the rate of 61/4% per annum holding that the interest of the plaintiff-respondents did not vest in the State, it being a tank fishery, so that the lease continued to subsist and the rent for 1369 B.S. paid in advance could not be credited towards rent for 1361 B.S. On appeal by the defendant the Subordinate Judge upheld the judgment and decree of the Munsif holding that in any case the interest of the plaintiffs had not come to an end and the contract as such subsisted and they were entitled to recover the amount claimed undaunted by the failure the defendant filed a second appeal before the High Court. The High Court also confirmed the judgment of the Subordinate Judge and dismissed the appeal. The defendant has now come up to this Court, as stated earlier, by certificate.